A fascinating exchange between the Alabama solicitor general, Edmund LaCour, and the newest associate justice, Ketanji Brown Jackson, occurred during oral argument in a challenge to the Section 2 of the Voting Rights Act in Merrill v. Milligan. After LaCour argued that the Equal Protection Clause of the Fourteenth Amendment compelled racial neutrality, Justice Jackson took issue.*

Justice Jackson tells the Alabama solicitor general that the Framers of the 14th Amendment did NOT intend it to be “race neutral or race blind,” so taking race into account to protect minority voting rights is perfectly constitutional. Progressive originalism at work. pic.twitter.com/aCXAq2CnJu

— Mark Joseph Stern (@mjs_DC) October 4, 2022

For those who prefer to read, from the transcript of oral argument.

I don’t think we can assume that just because race is taken into account that that
necessarily creates an equal protection problem, because I understood that we looked at the
history and traditions of the Constitution at what the framers and the founders thought about and when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race conscious way.

That they were, in fact, trying to ensure that people who had been discriminated
against, the freedmen in — during the reconstructive — reconstruction period were
actually brought equal to everyone else in the society.

So I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment, and that report says that the entire point of the amendment was to secure rights of the freed former slaves.

The legislator who introduced that amendment said that “unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen.”

That’s not — that’s not a race-neutral or race-blind idea in terms of the remedy. And — and even more than that, I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required, right? They drafted the Civil Rights Act of 1866, which specifically stated that citizens would have the same civil rights as enjoyed by white citizens.

That’s the point of that Act, to make sure that the other citizens, the black citizens, would
have the same as the white citizens. So they recognized that there was unequal treatment,
that people, based on their race, were being treated unequally.

And, importantly, when there was a concern that the Civil Rights Act wouldn’t have a constitutional foundation, that’s when the Fourteenth Amendment came into play. It was
drafted to give a foundational — a constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less rights equal to white citizens.

So with that as the framing and the background, I’m trying to understand your position that Section 2, which by its plain text is doing that same thing, is saying you need to identify people in this community who have less opportunity and less ability to participate and
ensure that that’s remedied, right? It’s a race-conscious effort, as you have indicated.
I’m trying to understand why that violates the Fourteenth Amendment, given the history and — and background of the Fourteenth Amendment?

It’s long, but worth reading, as Justice Jackson makes a very interest point, particularly from the originalist perspective, as there can be no serious doubt that the Equal Protection Clause existed to protect the rights of former slaves, specifically, and enable them to enjoy the same rights as white citizens. LaCour’s response was also very interesting.

MR. LACOUR: The Fourteenth Amendment is a prohibition on discriminatory state action.
It is not an obligation to engage in affirmative discrimination in favor of some groups vis-à-vis others.

JUSTICE JACKSON: No, but as — the record shows that the reason why the Fourteenth Amendment was enacted was to give a constitutional foundation for that kind of effort, for the Civil Rights Act of 1866, which was doing what the Section 2 is doing here.

LaCour raises a difficult question, as it’s been held by the Supreme Court many times that the Equal Protection Clause prohibits discrimination on the basis of race and commands race neutrality. But Justice Jackson’s point is well-taken, that the Equal Protection Clause was originally intended to remedy racial discrimination, and enable the remedying of discrimination against former slaves, by requiring that they be provided the rights already enjoyed by white citizens.

Is it a prohibition on discrimination, a long-held liberal understanding of the Equal Protection Clause that the government’s actions cannot favor one race over another, or is it an obligation to discriminate on the basis of race if it’s determined that racially neutral laws work to undermine the equality of one race by limiting political clout based upon an originalist constitutional analysis.

JUSTICE JACKSON: Which said, by its terms, that other citizens have to be made equal
to white citizens, and people were concerned that that didn’t have a constitutional basis, so
they enacted the Fourteenth Amendment.

If that’s what the “founders” intended, who are we to disagree?

*Mark Joseph Stern has apparently blocked me on twitter (again), because what legal journalist doesn’t want to avoid a lawyer reading his views? It’s unfortunate, if unsurprising, that legal pundits don’t want their echo chamber tainted by the occasional disagreeable view.